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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: MADHAV S/O GAJANAN CHAUBAL & ANR.

DATE OF JUDGMENT:       18/09/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      On the last occasion where the matter had come up after notice, since the respondents were not represented either in person or  through counsel and when, the counsel had pointed out the  decision followed  by  the  Tribunal,  namely,  Dr. Chakradhar Pasvan  vs. State  of Bihar  [(1988) 2  SCC 214], this Court  had referred  the matter  to three-Judge  Bench. Thus, the  matter has  come up  to-day, Even  now,  none  is appearing for  the respondents;   nor  are they appearing in person. We have taken the assistance of Sri Goswami, learned senior counsel.  We requested  him to  place on  record  the decisions for or against him. He has fairly argued case.      The admitted  facts are  that in  the National  Savings Scheme Service the Government had created various posts upto the post  of Superintendent;  there are  number of posts but there is  only one  post of Secretary. This post is a feeder post for  promotion as  Regional Deputy  Director  in  which category there are several posts. The Government applied the rule of reservation by rotation to the vacancies in the post of Secretary. 40 point roster is also being applied to these vacancies. In  the post of Secretary, point No.4 vacancy was reserved for  Scheduled Tribes. When that vacancy was sought to be  filled up  by promotion  from the  Superintendents in Group  A  category  from  Scheduled  Tribe  candidates,  the respondent filed  of in  the Central Administrative Tribunal at Bombay.  The Tribunal,  following the  decision  of  this Court in  Pasvan‘s case  [supra], by  order dated  March 11, 1992 in  OF Mo.613/90,  set aside the promotion holding that since the  post of  Secretary is  a single  point  post,  no reservation could  be granted  co the reserved candidates as it  would  amount  to  100%  reservation  therefore,  it  is unconstitutional. Thus, this appeal by special leave.      The question  is: whether  the application  of 40 point roster to  the successive vacancies in the post of Secretary violates Article  16 (1)  of the  Constitution? Shri Goswami has contended  that in Pasvan‘s case, that question was left open since  the controversy  did not  arise therein on those facts. since  the Government have decided that when a single

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post vacancy  arises as per roster point and when candidates belonging  to  Scheduled  Castes  or  Scheduled  Tribes  are available,  then   the  vacancy   reserved  for   respective Scheduled Caste  or Scheduled  Tribe could  be considered as per rules for appointment by promotion to the post Secretary in the  absence of their availability the vacancies would be and is  being carried  forward. Therefore,  the principle of rotation applied  to a  single  post  is  not  violative  of Article 16(1)  of the  Constitution. He has taken us through various judgments of this Court concerning the question.      In General  Manager,  Southern,  Southern  Railway  vs. Rangachari [(1962)  2 SCR  586], the Constitution Bench, per majority, had  held that  appointment by  reservation to the selection post  was not  violative of  Article 16(1)  of the Constitution. The same principle was followed in the case of promotion in  State of  Kerala vs. Thomas [1976 1 SCR 1906]. In the  State of  Punjab vs. Hira lal [(1970) 3 SCR 185] and A.B.S.K. Sangh  vs. Union  of India  [(1985) 2  SCR 185] and Comptroller &  Auditor General  v. S.K.  Jagannath [(1986) 2 SCR 17].  the matters  were referred  to a  larger Bench. In Indra Sawhney & Ors. vs. Union of India & Ors. [(1992) Supp. 3 SCC  217], per  majority, the Bench of nine Judges of this Court had  held that Article 16(1) and 16(4) do not apply to appointment by  promotion. They  would be applicable only to initial appointments. By Section 2 of the Constitution [77th Amendment], Act, 1995, Article 16(4A) was introduced which envisages that  nothing in  this Article  shall prevent  the State from  making any provision in reservation in matter of promotion to  any class  or classes  of posts in the service under the  State. It  is well  settled legal  position  that Preamble of the Constitution is part of the Constitution. In S.R. Bommai  vs. Union of India [(1994) 3 SCC 1], this Court had held  that preamble to the Constitution is a part of its basic  structure.   Socio-economic  justice,   equality   of opportunity and  of stattus, dignity of persons are the arch of the  seen that  the Constitution.  Social  Justice  is  a fundamental right  as held  in  LIC  of  India  v.  Consumer Education and  Research Centre  [(1995) 5 SCC 482]. Economic empowerment to  the poor  was held to be a fundamental right in Smt.  H.B. Usha  v. D.S.  Ramachandra [(1995) Supp. 2 SCC 49].  Article   335  mandates   the  State   to  take   into consideration the  claims of the Dalits and Scheduled Tribes for appointment  to  a  post  or  office  under  the  state, consistent with  efficiency of  administration.  Article  46 enjoins  upon   the  State  to  provide  socio-economic  and educational facilities  and opportunities Government evolved reservation in  posts or  offices under  the State as one of the modes  to socio-economic  justice to  Dalits and Tribes, Appointment to  an office  or post  into a service under the State is  one of the means to render socio-economic justice. Constitution [77th Amendment] Act, 1995 has resuscituted the above objective to enable the Dalits and Tribes-employees to improve excellence  in higher  echolons  of  service  and  a source of equality of opportunity social and economic status guarantees  by  the  Preamble  to  the  Constitution.  As  a consequence, the  Parliament has  removed the lacuna pointed out by this Court in Indra Sawhney‘s case. Thus, it would be seen the  legal position  held by this Court in Rangachari‘s case and  followed in  other cases  has  been  restored  and reservation of  appointment by  promotion would be available to the  members of the  Schedule Castes and Scheduled Tribes as per  50% quota   as  is maintained by this Court in Indra sawhney’s case.  The carry  forward principle  has also been upheld in Indra sawhney’s case In commissioner of Commercial Taxes v.  D. Sethu  Madhva Rao  (1996) 7 SCC 5121 a Bench of

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three Judges  and in M. venkteswarlu v. Government of Andhra b [61996)  5 SCC  1671 a  Bench of two Judges have held that right  to   reservation  in  promotion  stands  restored  by Constitution [77th Amendment] Act which introduced clause [4 A] to Article 16.      The   question,    therefore,   arises:   whether   the Government would  be justified in law to provide reservation in promotion in a single post by rotating the vacancy as per the roster point prepared by the Government? It is true that in Pasvan’s  case the  Governments with  a view  to  provide reservation to  the Scheduled Castes to the post of Director which is  a single  post, was  fused with two post of Deputy Directors which  do not  carry the  same  scale  e  of  pay. Therefore, this  Court had  pointed out that the cadre would mean the  cadre carrying  the same  scale of  pay. Since the Deputy Directors are not carrying the same scale of pay they cannot be  fused together  for  applying  the  principle  of reservation. By  implication, thus  Court had  accepted that two or  more single  posts carrying  the same  scale Of  pay would be fused to t elongate the Constitutional objective of Providing reservation  to a post in the service or office of the State,  It was  then held  that single  post  cannot  be reserved which  amounts to  100% reservation and, therefore, it is  violative of  Article 16(1) of the  Constitution. The further question  whether in  the  same  single  point  post reservation by rotation could be granted and whether it will be violative  of Article  16(1) was  left open in that case. The Constitution  Bench of this Court in Arati Ray Choudhury vs. Union  of &  Ors.  [(1974)  1  SCC  87]  considered  the question  of  the  single  post  and  applied  the  rule  of reservation 6  by rotation  to the  carried forward post and filled the  post when  reserved candidates were available on the carried  forward posts.  In this  regard, this Court had had down thus:      "That is  precisely  what  happened      here. The  S.E. Railway  runs  only      two Secondary  Schools  for  girls,      one at  Adra  and  the    other  at      kharagpur.    Senior-most     other      Assistant   Mistress,   Smt.   Gita      Biswas.   In   pursuance   of   the      memoraudum dated   December  4,1963      of the  ministry of  Home   Affairs      the Railway Board revised the Model      Roster by  their letter  of January      16, 1964.  The first  point in this      roster  is  a  reserved  point  and      therefore   the  Adra  vacancy  was      strictly a  reserved  vacancy.  But      there  being  only  one  particular      year of   recruitment  it had to be      treated as unreserved and therefore      the  appointment   went   to   Smt.      Biswas, an  open, not  a   reserved      candidate. This,  however had to be      compensated for by carrying forward      the  reservation  though  not  over      more than  2 subsequent recruitment      years. For the purposes of Services      under  the  Railway  administration      ’recruitment   year’    means   the      financial     year  and  the  other      appointment having been made in the      financial  year  1966-67    it  was      permissible to  carry  forward  the

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    reservation till the close of the .      financial year  1968-69. There  was      no vacancy  in 1967-68. The vacancy      in the  post of the Headmistress of      the Kharagpur  school  occurred  in      the financial  year 1968-69  by the      retirement of  Smt. Bina  Devi with      effect from  December 31,1968. This      vacancy,  indubitably,  had  to  be      treated as  a reserved  vacancy and      since from  amongst the 4 Assistant      Mistresses, respondent No.3 was the      only  candidate  belonging  to  the      Scheduled Castes  she was  entitled      to be  considered for  selection to      the post of the Headmistress to the      exclusion of the other . The claims      if any of the petitioner who is not      a reserved  candidate  have  to  be      postponed,  though  in  the  normal      course it  may be  quite some years      before she  gets her turn. The Adra      Headmistress  and  respondent  No.8      would seem to have a long tenure in      their respective office.      Accordingly, it was held that in carrying  forward post in a  single post,  reservation would  be  applied  and  the vacancies, after  carrying forward,  would be  filled up  by promotion from  the members  of the  Scheduled Castes.  This principle would  apply in  a single  post carry  forward  by applying rotation  and  it  would  be  consistent  with  the principle of  equality envisaged under Articles 14 and 16(1) of the Constitution. Article 14 and 16(1) equally applies to Scheduled Castes  and Scheduled  Tribes  and  they  too  are entitled to  seek equal opportunity to hold the single post, by  promotion.   Otherwise,  it   would  amount   to   total prohibition of  opportunity to  hold the  single point  post which also  violates Articles  14 and  16(1). A three Judges Bench was  to consider  the same  question in Sou. Vidyulata Arvind kakade  vs. Digember  Gyanba  Surwase  &  Ors.  [C.A. No.242 of  1992 decided  on  January  17  192]  in  a  short judgement. This Court stated thus:      We have  also perused  the judgment      of the  Constitution bench  and the      Division Bench  of  this  Court  in      Arati Ray  Choudhury vs.  Union  of      India &  Ors.[(1972) 2  SCR 1]  and      Dr. Chakradhar  Paswan vs. State of      Bihar  &   Ors.[(1988)2  SCC   214]      respectively. no  copy of  the writ      petition has  been  filed  in  that      Court.  There  is  no  material  on      record to  show that the Resolution      providing for  reservation provides      that the for reservation has not to      be applied  in isolated posts which      is the  basis of  the Challenge  in      this petition."      It would thus be seen that this court has accepted that reservation could  be provided even to the isolated posts on the basis  of the rule of rotation. Extension of reservation in such  cases is  not unconstitutional.  On the other hand, such scheme provides opportunity and facilities to Scheduled Castes and  Scheduled Tribes  to be considered for promotion to hold single posts consistent with equality of opportunity

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on par  with others.  In R.K. Sabharwal & Ors. vs. the State of Punjab  & [(1995) 2 SCC 745] a Constitution Bench of this Court considered  whether the  reservation as per the roster by promotion  could be  valid and  consistent  with  Article 16(1) of  the Constitution.  This Court had pointed out that the reservation  to the  post as  per  the  roster  for  the purpose of promotion is valid in law. The same can be filled up applying  the roster points prescribed by the Government. When a  candidate belonging  to  the  backward  classes  was appointed by  promotion on merit, he cannot be considered to be reserved candidate but the candidate appointed on rule of reservation to be filled up in roster point available to the reserved candidates.  In  Chetan  Dilip  Motghare  vs.  B.L. Education Society Nagpur & Ors. [(1995) Supp. 1 SCC 157] a Bench  of two  Judges of  this  Court  considered  whether reservation to single post could be valid in law. Though the decision in  the Arvind  Kakade‘s case  was brought  to  the notice of  the learned Judges, the learned Judges found that it did  not lay  down any  contra principle  to the one laid down by  this Court  in Paswan’s case and, therefore, it was held that  single point  post  could  not  be  reserved  for promotion. With due respect, we hold that the learned Judges have not  correctly appreciated  the ratio laid down by this Court in Vidyulata’s case and Arti Choudhry’s case. In State of Bihar  vs. Bageshwardi  Prasad [(1995) Suppl. 1 SCC 432], the Bihar  Government had provided by way of a circular, the rule of  rotation to  a single  post and  applied the roster point for  providing promotion  to the  vacancies  that  had arisen in  accordance with  roster  point.  This  Court  had upheld the  rule of reservation and held that reservation to the single  post by  applying the  rule of  rotation is  not violative of Articles 14 and 16 (1) of the Constitution. The judgment in Pasvan‘s case was distinguished.      Thus, we  hold that even though there is a single post, if the  Government have applied the rule of rotation and the roster point  to the vacancies that had arisen in the single point post and were sought to be filled up by the candidates belonging to  the reserved  categories at the point on which they are  eligible to  be considered,  such a  rule  is  not violative of Article 16(1) of the Constitution. In this  case, it  is seen  that the  post of  Secretary  is carrying the  scale of pay of Rs.2200-4000/-. The Government have decided to apply the 40 point roster maintained for the post of  Secretary. The  vacancy available  at the  time  of point No.4  of the  roster was  reserved for  the  Scheduled Tribes. When the Department had sought for the clarification from  the   Department  of   Personnel  and   Training,  the Government of India, had stated thus:      "There  is   no   change   in   the      positions,  however,   it  may   be      stated that  unless this Department      changes the  earlier  instructions,      the old order will remain in force.      Thus  the  Supreme  Court  Judgment      cannot be  made applicable to other      cases automatically".      Thus, the  Government  have  adhered  to  the  rule  or rotation to  a single  post and  the 40  point roster to the single post  was applied  and the  vacancy reserved  for the Scheduled Castes  and  Scheduled  Tribes  as  and  when  had arisen, was sought to be filled up, when the candidates were available. Thus,  we hold  that the roster point No.4 in the vacancy of  the Secretary  reserved for the Scheduled Tribes was valid and constitutional. When the officer available and was eligible  to  be  considered,  he  was  entitled  to  be

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considered in  accordance with  the rules and he promoted as Secretary.  The   Tribunal,  therefore,  was  not  right  in directing, that  the rule  of rotation  to the  single  post could not  be applied.  It is brought to our notice that the original  promotee   died  pending   the  proceedings   and, therefore as and when vacancy arises as per rule of rotation as per roster the same would be filled up in accordance with law.      The  appeal   is  accordingly   allowed  but   in   the circumstances, without costs.